Feb. 28, 2025 – A pandemic-era law that granted immunity to health care providers for medical malpractice claims during the COVID-19 state of emergency unconstitutionally deprived individual liberties, the Wisconsin Court of Appeals District I held in Wren v. Columbia St. Mary’s Hospital Milwaukee, Inc., No. 2024AP126 (Feb. 11, 2025).

“While we acknowledge that the health care system faced unique challenges during the COVID-19 pandemic, ‘[t]here is no pandemic exception … to the fundamental liberties the [c]onstitution safeguards,” wrote Judge Pedro A. Colón in the court’s unanimous opinion.

Malpractice Claims After Birth

Savannah Wren gave birth in May 2020 at Columbia St. Mary’s Hospital Milwaukee, Inc., but her son, Calvin Gordon, Jr., died on May 24.

The birth occurred during the pandemic and two months after Gov. Tony Evers’ declared a state of emergency on March 12, 2020.

The next month, the Legislature passed pandemic legislation, called “Immunity for Health Care Providers During COVID-19 Emergency” and codified at Wis. Stat. section 895.4801. The law would continue until sixty days after the state of emergency.

Wren, individually and as personal representative of her son’s estate, and Calvin Gordon (the Wrens) sued the hospital, two physicians, and the Injured Patients and Families Compensation Fund on July 6, 2023, in Milwaukee County Circuit Court.

The complaint alleged three counts of medical malpractice and wrongful death and one count of negligent infliction of emotional distress. The defendants moved to dismiss the complaint based on immunity granted by the statute.

The Wrens argued the statute was unconstitutional under the First, Fifth, Seventh, and Fourteenth Amendments to the U.S. Constitution, and article I, section 9, of the Wisconsin Constitution. They added in a supplemental brief that the statute violated equal protection.

The defendants claimed immunity and argued the Wrens failed to provide the “notice” required by Wis. Stat. section 806.04(11), for constitutional claims against government officials. That is, the Wrens failed to name government officials as parties.

The circuit court granted the motion to dismiss on two grounds. It held that section 806.04(11) requires naming the government officials as parties and not naming them deprived the court of “subject matter jurisdiction.” The court also held that section 895.4801 provided immunity to the defendants. The Wrens sought appeal for both issues.

Service Is Enough

On appeal, the Wrens argued that Wis. Stat. section 806.04(11) requires only service of a copy of the pleadings. It did not require them to name the officials as party-defendants.

When a party seeks declaratory relief, such as a declaration that a statute is unconstitutional, section 806.04(11) requires all persons “who have or claim any interest which would be affected by the declaration” to be named as a party.

But section 806.04(11) goes on to say that if a statute is alleged to be unconstitutional, the attorney general, the speaker of the assembly, the president of the senate, and the senate majority leader “shall also be served with a copy of the proceeding,” and the attorney general, assembly, the senate, and the state legislature “are entitled to be heard.”

The Wrens served the attorney general, speaker of the assembly, president of the senate, and senate majority leader with copies of the summons and complaint, motion to dismiss, and related briefing. They did not name them as parties to the case.

Judge Colón, joined by Presiding Judge Joseph Donald and Judge Sara Geenen, concluded that the plain language of the statute only “requires service,” not “that any of these individuals must be named as a party to satisfy the requirements of the statute.”

The language of the statute regarding the attorney general hasn’t changed since 1978, and “identical language” applies in the same way to the other officials named, the court of appeals explained.

Immunity too Broad

Under Wis. Stat. section 895.4801(2), “any health care professional, health care provider, or employee … is immune from civil liability for the death of or injury to any individual or any damages caused by actions or omissions” while providing or not providing services in good faith during the state of emergency. The statute excluded from immunity “reckless or wanton conduct or intentional misconduct.”

Although the Wrens raised several constitutional challenges, the court of appeals framed its analysis under Wis. Const., article I, section 5, which ensures the right to a jury trial.

Similarly, although the Wrens did not specify whether their constitutional challenge was facial or as applied, they referenced it in circuit court as facial. Both sides described the claim as a violation of a fundamental right requiring strict scrutiny.

Medical malpractice claims face limits by statutes of limitation, statutes of repose, and other laws, including the noneconomic damages cap. Immunity differs, the court of appeals explained, because “immunity provides a complete shield from liability.”

Section 895.4801, the court of appeals explained, “is the complete elimination of [the Wrens’] ability to pursue [their] claims.” Because “[t]he right of access to the courts and the opportunity to have a jury trial has not been preserved in any capacity,” the court of appeals confirmed the claim “triggers strict scrutiny.”

This broad immunity, the court highlighted, has no “nexus to the state of emergency declared in response [to] COVID-19.” The original version of the statute would have limited its immunity only to pandemic-related services, but an amendment struck that language.

The Wrens contended that they “should not be denied the right to a jury trial on [their] claims simply because they arose during the state of emergency that Governor Evers declared in response to the COVID-19 pandemic.” The defendants argued that health care providers needed broad immunity during the pandemic.

Right to Jury Trial

The court of appeals agreed with the Wrens. Their “right to a jury trial on [their] claims did not disappear as a result of the state of emergency created by the COVID-19 pandemic when the reason for [their] claims is unrelated to the compelling state interest of responding to COVID-19 that underlies the statute.”

The Wrens cannot lose their rights merely by bad timing. “Simply because Wren was pregnant and had a baby during a pandemic does not make any health care she received related to COVID-19 and the state’s response to it,” the court of appeals said.

Although the defendants argued that the statute’s time limit made it narrowly tailored, the court of appeals disagreed. Merely because the pandemic would end someday did not provide a sufficiently narrow statute.

“Furthermore, even with a time limit, the fact of the matter remains that the statute, for a brief period of time, eliminated a patient’s ability to seek a jury trial for any negligent acts or omissions of a health care provider, without requiring that the care provided have a nexus with the stated compelling interest of responding to the COVID-19 pandemic,” the court concluded.

The court of appeals reversed the circuit court’s dismissal and remanded.